Taking property by deceit (this is not a Treaty article)

Stephen Franks

I’ve been around the law and politics for some time. Legislation is moulded by politics. Some politicians insist on obscure language to disguise the real effect of law, to delay opponents realising how far it goes. I understand that. We live in a democracy. Democracies need politicians who act to minimise the number who want to vote them out. So a law-writing  hand may get  an irresistible urge to obfuscate .

Until recently we had some protection from Parliamentary Counsel. There was a convention supporting some gate-keeper role in rejecting such deceit, but it seems that semi-constitutional filter has gone.

There are less cynical and offensive ways to deceive the public, but deceptively written law is becoming “normal”. Few lawyers in Parliament have the background to detect it, which may have something to do with selections for identity group ‘reflection’ instead of established merit.

The increase may also be because the deceitful hand is not necessarily that of  the politician.  Officials with an agenda their elected masters won’t like have the time to hide their obfuscations deep in dense language. Politicians may not work out what they are voting for until too late.

A Bill well through the Parliamentary process ‘updating’ the Historic Places Trust legislation is a classic example. The 1993 Act over-rode property rights, but only for the unfortunates who happen to own really old places, The replacement Bill turns that limited exception into general contempt for the property rights. Now they are to be confiscated from pretty much anyone with property that “Heritage New Zealand Pouhere Taonga” finds appealing. The Board can declare a place to be category 1 or 2 protected (economically seized for practical purposes) if they are satisfied of its “significance or value in relation to” any one or more of its:

  • ‘Technical accomplishment, value, or design’;
  • ‘Symbolic or commemorative value’;
  • ‘Community association’;
  • ‘Public esteem’;
  • ‘Potential for public education’;
  • ‘Importance to tangata whenua’;
  • ‘Extent to which it forms part of a wider …cultural area’.

Observe that none of those need have anything to do with history.

The ‘Heritage’ czars will be able to freeze your place  built last year, if they think the architecture (‘design’) is great. If some idiot has started calling your property or street iconic, look out, because it will show it has ‘public esteem’. If it was once used for something for which we’ve started to pretend reverence, like an RSA hall, or where Lorde was born, get ready to lose your property rights. A public clamour to turn it into a shrine of symbolic value, or of community association would satisfy Board.

None of this is accidental. At a conference 18 months ago I heard two Auckland architects assuring the audience that changes were coming to make sure that no one could disrespect their favourite works in the future, however new, because they could be protected as taonga. The audience murmured agreement that it was outrageous that really old taonga could be protected from its owners, but not new. Note to developers – never build anything  distinctive from now on, shun imaginative architects, don’t buy ‘landmark’ assets. Boring is good.

So how has this extension of powers drawn no public attention?

The word “historic” is still sprinkled liberally throughout the Bill. And the criteria above are in a list which retains the earlier concepts, including five out of eleven which still require connection with something old, like:

  • Association with events, persons or ideas of importance in NZ history;
  • Potential to provide knowledge of NZ history;
  • Identifying historic.

The removal of any necessary connection with history is achieved by sly new definitions in the fine print. Though the word historic is still used, it is now defined to cover also “cultural heritage” (not defined). The former requirement for age has largely gone, and it does not apply to the ‘cultural’ part.

Perhaps this does not matter too much you might think, because at least the Crown will pay owners for effectively nationalising their savings or land. That has always been the principle under the Public Works Act. And this is a bill from the National government which surely respects property rights. Indeed it is paying out hundreds of millions to Maori for previous generations’ disrespect.  Aren’t there some basic constitutional assumptions about not taking people’s property for public purposes without compensation?

Aha – the cunning drafters were up and at work well before you, and apparently before your representatives in Parliament. Sub-clauses (2) and (3) of clause 12 say:

“Nothing in this Act requires Heritage New Zealand Pouhere Taonga to negotiate or agree with any person to acquire any land or interest in land.

No interest in land may be regarded as having been taken or injuriously affected and no compensation is payable by reason only of any provision of this Act”

Yet even ACT and United Future (which a few years ago introduced a member’s bill to require respect for property rights in the NZ Bill of Rights Act) have been voting for this Bill. And so has the Maori Party which came into being because property rights guaranteed under article 2 of the Treaty were trashed.

So there we have it – a perfect example of deceptive drafting working perfectly, even on politicians who should know all about deceit, and be alive to being tricked into voting against principles they hold dear.

You might think that someone might have noticed what was happening, because the Minister has boasted of the extra protection inserted for property owners.  HNZPT must now “recognise the interests of an owner as far as those interest are known”. What does that mean? Next to nothing. There is no obligation even to find out what the owner's interests might be. But HNZPT need not worry. That provision appears immediately before the provisions saying no owner agreement is required and no compensation is payable. In my opinion a court will be obliged to find that 'recognition'  has no practical value. Maybe it will be  a plaque on the building  saying‘with thanks to chump [insert name of owner]”.

I would have ended this post here, thinking I’d uncovered one of the finest examples of legislation as deceit..

But it is about to be topped by a doozy. I’ll explain that in a separate post in due course.

Before you go, however, there is often a sign when a Bill is deliberately unclear, like a nervous tic in a poor liar. Such Bills often include 'New Zealand' in the title, always gratuitously.Is that why the Historic Places Trust Act 1993 is to become the Heritage New Zealand Pouhere Taonga Act 2014?  Who else’s ‘Heritage’ or ‘Pouhere Taonga’ does Parliament think they might claim power to expropriate?

The totally empty insertion of 'New Zealand' reminds me of various sententious lectures we practicing lawyers have had from lawyer MPs,  about plain English and simple comprehensible language. Compared with the crowd now elected to muddle our statutes, the fine print artists of website terms and conditions and log-in pages are amateurs.

Stephen Franks is principal of Wellington commercial and public law firm Franks and Ogilvie.

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